PacifiCorp has agreed to cease communications with wildfire survivors regarding a class-action lawsuit against the company over the 2020 Labor Day fires after plaintiffs learned of multiple ex-parte contacts during recent months.
On Nov. 7, Multnomah County Circuit Court Judge Steffan Alexander ordered PacifiCorp could no longer communicate with any members of the class, which include survivors of the Santiam, Echo Mountain Complex, Obenchain, and 242 fires, unless such contact was previously authorized by class counsel.
PacifiCorp had already agreed to these terms with plaintiffs in a stipulated motion filed three days before, and Alexander’s order made the agreement official.
PacifiCorp also agreed information collected through such class member communications could not be used as evidence, while records of said communications, including interview notes and internal emails, should be shared with class counsel, except as otherwise protected by attorney-client privilege.
If a survivor of the fires contacts the company in the future, even if such an individual is not aware they may be a class member, PacifiCorp agreed the company must notify them of the lawsuit, the individual’s potential status as a class member, and that PacifiCorp may not be authorized to speak with them.
The notice must also include references to additional information about the suit and a class member’s options for opting out if they so choose.
Motion over ‘ethical’ concerns
Plaintiffs filed a motion Oct. 7 requesting the order after learning the day before a PacifiCorp claims agent had spoken with at least three survivors of the 242 Fire regarding damage to their properties, but without notifying them of the pending lawsuit or PacifiCorp’s adverse interests in the matter. Plaintiffs argued this was a violation of ethical standards and may have caused unknown harm to the case.
Attornies for the plaintiffs also learned of at least two PacifiCorp employees who were also class members, and that defense counsel had allegedly concealed their status until prior to a deposition of the men scheduled in August. At that point PacifiCorp counsel notified plaintiffs’ counsel of their class member status. Though these incidents were not included in plaintiff’s Oct. 7 motion, they were included among evidence of the alleged need to restrict PacifiCorp’s communications with class members.
At issue was whether or not class members who were unaware of the suit, termed “absent class members,” received default representation by class counsel and must therefore be treated as represented parties.
Alexander verbally certified the class May 13, and plaintiffs argued, from this point onward, PacifiCorp was barred from discussing the substance of the suit with class members, absent or otherwise, without the consent of class counsel.
PacifiCorp argued representation for absent class members did not begin until an opt-out period expired, in this case Dec. 6. Until then, class members could still choose to not be party to the suit. They also noted the fire survivors in question initiated contact with the company and said they had no legal representation when asked by the claims agent.
After both sides deliberated the matter, they agreed to the stipulated terms approved by Alexander.
Plaintiffs agreed to drop language in the notice requiring PacifiCorp to call its prior contacts “improper,” and PacifiCorp agreed to drop language in the same notice that tied its ability to process claims to whether or not class members chose to opt out of the suit.
Other issues pending
A related motion remains pending before the court. Plaintiffs are requesting that the PacifiCorp claims agent in question be compelled to testify about her understanding of the causes behind the fires, and that PacifiCorp should be sanctioned for having instructed the claims agent not to answer those questions due to attorney-client privilege.
Plaintiffs argue the claims agent has already stated she has information about how the fires may have started, including personal opinions and analysis, and PacifiCorp has not offered adequate proof as to why this testimony should be privileged. The motion was filed Nov. 4 and defendants had yet to file a reply by press time.
Plaintiffs also filed a motion Nov. 14 asking to submit an amended complaint to better-reflect the evidence they intend to use at trial, which they said has “developed significantly” since the suit was first filed Sept. 30, 2020.
After deposing all named plaintiffs, numerous PacifiCorp employees and studying extensive documents, plaintiffs believe they have a clearer theory of why PacifiCorp allegedly contributed to the cause and spread of the fires, and may have grounds to request damages beyond the $1.6 billion currently sought.
The Nov. 14 motion said PacifiCorp had objected to such amendments during attorney deliberations. As of press time they had yet to file a response with the court.
PacifiCorp has denied liability for the fires, and argues their electrical system was maintained and operated according to industry standards.
A hearing to consider both of these motions is scheduled for Dec. 19, while an eight-week trial is scheduled to begin April 26, 2023.
